President Donald Trump said he is federalizing the District of Columbia’s police and activating 800 members of the National Guard to patrol the city. He also threatened to put an even larger military presence in place to combat what the administration is saying is an emergency over crime.
“We will bring in the military if needed,” Trump said Monday, seemingly referencing active-duty troops. Secretary of Defense Pete Hegseth reiterated the possibility, noting that “there are other units we are prepared to bring in.”
The White House said it wants to give law enforcement a long leash: The police will be “allowed to do whatever the hell they want” and “knock the hell” out of people they engage with, Trump said. His use of the National Guard is already pushing precedent.
The administration is facing a court battle in California over his use of the National Guard. The state sued, alleging that Trump’s use of Guard troops violated the Posse Comitatus Act. The trial on Trump’s use of the National Guard in California started on Monday.
The Posse Comitatus Act prohibits the military from getting involved in domestic law enforcement, unless it’s been authorized by a law passed by Congress or in direct support of the Constitution.
“Posse Comitatus applies to the District of Columbia just as it does to the states,” Richard Painter, a law professor and a former White House ethics lawyer during George W. Bush’s presidency, told NOTUS. “This means that the National Guard, if under the command of the president of the United States, cannot be used for domestic law enforcement, absent some very narrow exceptions.”
That said, there has been some legal debate on the point that Painter raised. The Department of Justice has long maintained a gray area around Posse Comitatus’ application when it comes to the D.C. Guard.
In the 1980s, the DOJ claimed it was within the bounds of the law to use the D.C. Guards for drug enforcement efforts. Previous case law has determined the applicability of the Posse Comitatus Act based on how the Guard was activated and its funding.
The Army has said that the National Guard will only be used in support of law enforcement.
Trump is exercising presidential authority over the D.C. National Guard unit by “declaring a public safety emergency,” not by invoking the Insurrection Act, one of the clearer exceptions to the Posse Comitatus Act.
It’s still unclear under what authority the National Guard troops will be activated.
Usually D.C.’s mayor would request for the assistance of the National Guard, in a similar manner to how governors request the National Guard in an emergency. Trump, in a memorandum to Hegseth, said the “local government of the District of Columbia has lost control of public order and safety in the city.”
The District of Columbia mayor’s office said it did not make a request for assistance.
“This is a situation without standard operating procedures,” a municipal official with a D.C. public safety office told NOTUS. They were not authorized to discuss the matter, as city employees were directed to refer to Mayor Muriel Bowser’s comments on Monday. “We often collaborate with our federal and interagency partners. That lack of information is just something we’re trying to figure out how to avoid.”
Hegseth is still responsible for approving or denying those requests for assistance, and in this case, is responsible for the National Guard’s deployment. Usually, the secretary of defense delegates the responsibility for the National Guard to the secretary of the Army.
Hegseth said on Monday morning that he was following that model, placing the immediate responsibility for the National Guard’s operations under Secretary of the Army Dan Driscoll.
The active-duty component of the Army, not the National Guard Bureau headquarters office, is responsible for the operation using the D.C. National Guard troops, according to one Army official.
Painter, a critic of Trump, said bringing in any military, including National Guard troops, to address what he sees as an obvious problem of crime and homelessness is a “slippery slope.”
“The whole point of Posse Comitatus is that you can’t do that,” Painter said. “Because that can be dangerous for democracy if the Army gets deployed all over the country with law enforcement purposes,” he said.
“It’s dangerous and we don’t want to go down that slippery slope, as bad as the crime problem may be in D.C. and other places might be.”